Article 102 and Section 2 of SA

1. Prosecutes three offences, which have a behavioral, structural and subjective element

1.1. Attemp to monopolize

1.1.1. Str. element:Dangerous probability of acquiring monopoly power

1.1.1.1. It does not adress firms that already have a relevant market. The attemp offence is created to catch practices that are likely to create monopoly power.

1.1.2. Behavioral element: Anticompetitive conduct

1.2. Monopolization

1.3. Abuse of dominant position

1.3.1. Str: dominance

1.3.1.1. Is the same as monopoly power: Ability to raise price, and persist during a signifcant period.

1.3.2. Beh. Abuse of dominance

1.4. Behavorial, Structural, and subjective element

1.4.1. What about the subjective element?

1.4.1.1. "No monopoly monopolizes unconciously", SO

1.4.1.1.1. 1. You can infer intent from a conduct 2.We shall not prosecut good competition 3.The concep of abuse is objective (EU). THAT IS, We assume that subjective element is always present if the others are present

1.4.2. Structural element Monopoly power

1.4.2.1. In US/EU is associated with diffrent market shares:US >75%, EU >40% is monopoly. EU is stricter

1.4.2.2. But, when it is for an attempt to monopolize, in US as low as 30% is OK to investigate.

1.4.2.3. They want also to asses monopoly power through

1.4.2.3.1. How long the monopoly will last

1.4.2.3.2. Potential competition

1.4.3. Behavioral Element: Ant.com. conduct

1.4.3.1. EU/US n terms of keeping their dominant position. US is more lax. in EU E the concept of fairness

1.4.3.1.1. Unfair prices

1.4.3.1.2. Unfair trading conditions

1.4.3.2. EU vs US in terms of benefiting from its dom position

1.4.3.2.1. Predatory pricing

1.4.3.2.2. Loyalty rebates

1.4.3.2.3. Tying

1.4.3.2.4. Refusal to deal/license

1.4.3.2.5. Exclusive dealings

1.4.3.2.6. The theory of foreclosure

2. Policy choices, that is whats important in terms of policy when a dominant position is spotted

2.1. Under a dominat firm, what should be the policy. TWO QUESTIONS:

2.1.1. Should There be a ceiling of what the dominant firms can appropiate?

2.1.1.1. In the present: -US: NO -EU:YEs

2.1.2. Should they be allowed to keep fircely competing?

2.1.2.1. In present: We should employ the PRONG test

2.1.2.1.1. PRONG TEST:

2.1.3. BUT! Before US and EU had these obejctives, in the past:

2.1.3.1. Protecting small businesses (Harvard School)

2.1.3.2. Fairness and Justice

2.1.3.3. Equity and distribution

2.1.3.4. Creation of an internal Market

2.1.3.5. They were very OVERDETERENT!

3. Deals with: MONOPOLY/ABUSE OF DOMINANT POSITION

4. In a court the modus operandis is as follows:

4.1. Plaintiff: Formulates a theory of harm, after observing that there was something weird in the market

4.2. Defendants:Must provide an explanation of the regarded phenomena, that is consistent with economic strategies and that gives him meritorious competition.

5. Art 102

5.1. Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States." Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

6. Section 2

6.1. "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony